Rinehart, Butler, Hodge, Moss & Bryant P.L.C.Attorneys At Law

FAQs

Frequently Asked Questions

Virginia Divorce and Family Law Frequently Asked Questions (FAQs)

We hope that these questions and answers will help you to gain some understanding of the issues in Virginia divorce and family law. But please do not forget that every case, including yours, is completely unique. There is no substitute for getting face-to-face, one-on-one advice from an experienced attorney, and so you should not take the following questions and answers as advice on your particular situation. Consult with an experienced attorney for answers to any questions pertaining to your specific Virginia divorce or family law case.

A: Yes. Section 20-124.2(C) of the Virginia Code provides that support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever first occurs.

The court may also order the continuation of support for any child over the age of 18 who is (i) severely and permanently mentally or physically disabled, (ii) unable to live independently and support himself, and (iii) resides in the home of the parent seeking or receiving child support. In addition, the court may confirm a stipulation or agreement of the parties which extends a support obligation beyond when it would otherwise terminate as provided by law.

A: Yes and no. Virginia law does not allow the court, on its own, to order that child support include the payment of college expenses. However, if the parents enter into a written agreement providing that one or both of the parents have to pay for college, the court can enforce the parents’ agreement.

A: Child support is determined according to a presumptive guideline that is set forth in Section 20-108.2 of the Code of Virginia. The guideline requires one to know the number of children, the gross monthly income of each parent, the cost of work related day care for the children, and the cost of providing medical insurance. A number of other considerations come into play, for example, the presence of other children who are not the subject of the current child support proceeding, the number of custodial days each parent has with the child per calendar year, and whether either parent has claimed the child tax credit, may all affect the guideline calculation. The guidelines yield a “presumptive” figure for monthly child support, which means that the Court is required to apply that amount unless evidence proves that the Court should deviate from the guidelines. A list of the possible “deviating” factors is set forth in Section 20-108.1 of the Code.

A: Not necessarily. Although “fault” committed in the marriage, including adultery, is one of the factors the Court is required to consider, the fact that your spouse committed adultery or some other “fault” does not necessarily mean that the court will award you a larger share of the property based on that conduct.

A: Not in all cases. If the ground of divorce is adultery, sodomy, buggery, or conviction of a felony resulting in a prison sentence of more than one year, there is no statutorily prescribed separation period**. For a divorce based on cruelty, desertion, or reasonable apprehension of bodily harm, you need to be separated for at least one year to be awarded a final divorce. A divorce can also be granted based upon intentional separation for a period of one year without proof of any fault on behalf of either party. Also, where the parties to a divorce have no children under the age of eighteen AND a separation agreement, the required period of separation is six months. In any case where a period of separation is required, the separation must be continuous for the entire period and must be accompanied by an intention to make it permanent at the commencement of the separation period. **Note, however, that a number of other statutory conditions DO apply to the granting of a divorce on these grounds.

A: Virginia law does not have a statutory designation or category for people who are living in a state of separation from their spouses. The state of “legal separation” is commonly used to describe spouses who are no longer living together, where at least one of them has formed the intention to be permanently separated. But living in a state of separation does not itself confer any particular legal status beyond possibly giving one or both of the parties a ground to seek relief from the court–such as possible a divorce, spousal support, child custody, and child support, among others.

A: Not necessarily. Separation means that the husband and wife have ceased “cohabitation.” Cohabitation, in turn, is not one single behavior–such as sleeping together–but a collection of behaviors in which husbands and wives typically engage. These include, but are not limited to, eating together, performing household chores for one another, maintaining joint finances, and holding themselves out to the community as a couple. When all vestiges of cohabitation have ceased, the parties can be said to have “separated”, but this means more than not sleeping with or having sex with your spouse.

A: Legally, it is never advisable to date another person while you are involved in a domestic situation that may result in a divorce or custody suit. First, adultery is still adultery, even if the spouses are separated, and it is still a misdemeanor crime in Virginia. In addition, if adultery is proven in a divorce, the “guilty” party may lose the right to receive spousal support. Even if adultery is not committed, however, you still may be accused of it if your behavior indicates a romantic involvement with another person while you are still legally married. In child custody cases, the issue of exposure of the children to an adulterous relationship may become a serious issue. In short, while it may be very tempting, from a personal standpoint, to “date” others after the breakdown of an unhappy marriage, the legal consequences can be serious.

A: No. “Irreconcilable differences” are not a ground for divorce in Virginia. See “Grounds of Divorce, below. My marriage is miserable and I am ready to move out. If I do, will I be guilty of “desertion?”. “Desertion” and “abandonment” refer to the unjustified termination of cohabitation with your spouse. Under prior law, this meant that, in order to be justified in leaving your spouse, the other spouse would have to be guilty of something that would constitute a ground for divorce. Under the present law, the other spouse’s conduct does not necessarily have to rise to the level of a “ground of divorce” to justify the other party in leaving the marriage. However, this is a very fact-specific question and one on which you should seek sound legal advice in answering before making any decision.

“A: Adultery; sodomy; buggery; conviction of a felony resulting in a term of confinement for more than one year; desertion; abandonment; reasonable apprehension of bodily harm; intentional separation for a period of one year, and in certain circumstances, intentional separation for a period of six months.

**Note that these grounds of divorce have a number of other accompanying requirements that must be satisfied in order for a divorce to be granted based on them.

A: It depends on a number of different factors. If all the underlying issues—-property division, child custody, support, etc. are agreed—and the parties have been intentionally separated for the required period, the divorce could be filed and finalized relatively quickly, often times in a matter of weeks. If there are contested issues which must be litigated in court, divorces can take many months to finalize. The length of time your case may take is very fact-specific, and something you will want to discuss in detail with your attorney.

A: Not if your case can be resolved by agreement. If all the underlying issues are agreed in writing, obtaining the divorce will involve providing the court sufficient evidence that the grounds of divorce have been satisfied, and drafting the necessary documents. However, under no circumstances should you attempt to write your own settlement agreement. You may be permanently sacrificing valuable rights by attempting to prepare your own divorce agreement without the assistance of an experienced attorney.

A: Absolutely not. It is imperative that you have the benefit of experienced legal counsel to guide you in this process. You could be permanently sacrificing valuable rights by attempting to prepare your own divorce settlement agreement.

A: Yes. Virginia’s law of property division in divorce, Section 20-107.3, provides that the Court can order that one spouse name the other as beneficiary of the death or survivor benefits of his or her retirement or pension account.

“A: Possibly. Legal title to the property is not the determining factor in deciding whether an asset is “”marital”” property and therefore subject to division by the court. It is possible for an asset to be separately titled to one party and nevertheless be a marital asset. However, if a piece of property was acquired prior to the marriage, remained titled to one spouse, and no marital funds or efforts were ever contributed to the property, the statute would classify it as separate property.

The Court cannot order one party to transfer title of a separately owned piece of property to his or her spouse, but the Court can order that the owning spouse pay the other a sum of money for his or her interest, which is called a “”monetary award.”””

“A: Yes. Retirement benefits, to the extent they were acquired during the marriage, are marital property and subject to division by the court. This is usually accomplished by means of a special court order called a “qualified domestic relations order (QDRO)”, “qualifying retirement benefits order” or some variation thereof.

Note: A special provision of the divorce statute “caps” the percentage that the non-owning spouse can receive at 50%.

A: No. Social Security benefits are not a divisible asset. However, the statute directs the court to take into account all sources of income of each party in determining spousal support, which would include income from Social Security.

A: No one in a Virginia divorce is “entitled” to any particular percentage of the marital assets. After deciding what is “marital” and what is “separate”, the Court is required to consider evidence relating to a number of “factors” in deciding which percentage or amount of the marital property each party is to receive.

“A: You will not have to go to court to litigate the property division and support issues if you have a written agreement. Your agreement would normally be “ratified, affirmed, and incorporated” into a final order of divorce prepared by your attorney or the opposing attorney.

You will still need to present evidence to the court that demonstrates that a grounds of divorce exists. In some jurisdictions the evidence taken in support of an uncontested divorce can be taken by deposition. Some jurisdictions provide for that evidence to be taken in brief “”ore tenus”” hearings before the Judge.”

A: Yes, the Circuit Court in a divorce proceeding can apportion debts to the extent that they were incurred prior to the final separation of the parties.

A: Legal custody determines which parent (or non-parent, as the case may be) has the authority to make decisions that affect the child. If a parent has sole legal custody, he or she makes those decisions. Joint legal custody is an arrangement where both parents have decision-making authority, and this presupposes that the parents can communicate and cooperate effectively enough to make decisions together.

A: The courts are required to consider a number of factors under the statute, which is Section 20-124.3 of the Code. The age and health of the child, the age and health of each parent, the relationship existing between each parent and each child, and the role that each parent has played in the upbringing of the child are just some examples of the factors.

In any custody case it is vitally important for the attorney to review with you the statutory factors and to discuss the facts of your case as they apply to the statute.

A: Yes. Even if you have a custody order that grants you legal and/or physical custody, an out-of-state change of residence is something you typically would need to seek leave of court to do.

A: Until the child reaches the age of majority, he or she does not make the custody decision. This is the Court’s responsibility if the parents are unable to reach an agreed order. The Court is not bound by the child’s preference, but is required to give due consideration to the child’s reasonable preference if the child is of reasonable intelligence, understanding, age and experience to express such a preference.

A: The Court can award visitation rights to grandparents. However, if neither of the child’s parents agree for the grandparents to have visitation, a much more stringent, “actual harm” test is applied by the Court. That is, the grandparent would have to show that the child would suffer actual harm as a result of not having visitation with the grandparent, as opposed to simply showing that visitation would be in the child’s “best interest.”

A: The court has the authority to modify custody and visitation orders if one or both parents are able to demonstrate 1) that a material change of circumstances has occurred since the entry of the last court order; and 2) that modification of the custody/visitation order is in the best interests of the child.

“A: This depends on whether there is an existing order issued by a court of any state. Once a particular state’s court has issued a valid custody order, that state typically keeps exclusive jurisdiction over the custody issue as long as the child, one or both of the parents, or a person standing “”in loco parentis”” continues to live in that state.

In the absence of any court order, the child’s “home state” is the one which has jurisdiction over the custody issue.

The jurisdictional issue can become extremely complex in interstate custody matters, and it is important to discuss all the facts of your case and the governing statutes with your attorney.”

A: The courts can, and often do, appoint an attorney called “guardian ad litem”, who is charged with making an investigation and representing to the court that which he/she believes to be in the best interest of the child. However, the statute requires that, before appointing a guardian ad litem for the child, the court must make a finding that the child’s interest would not otherwise be adequately represented.

A: Yes. The Court in a divorce or spousal support proceeding can issue a temporary support order requiring one spouse to pay the other a sum of money to help cover these expenses. This is called a “pendente lite” order.

A: Only temporary spousal support may be calculated according to a formula, which may be one of a few different variations that take certain percentages of each party’s incomes and subtract them to yield the support figure. For spousal support that is to be determined in a final adjudication, the Court is required to consider the evidence relating to a number of “factors” under the statute, and exercises its discretion in setting the duration and amount. Spousal support is a very complex area of domestic relations law, and your attorney can discuss with you how the statutory factors apply to the facts of your case.

A: It depends. If you have a written agreement that has been incorporated into a final order of divorce, the support can only be modified as provided in that agreement. If the Court adjudicated your support obligation in a contested trial, the Court has the authority to modify the support obligation if either party is able to demonstrate a “material change of circumstances” which warrants it.

A: Yes. The Court has the authority to order that one spouse maintain his/her existing health insurance to the other during the pendency of a divorce or spousal support proceeding.

PROTECTIVE ORDERS 101.

 

In Virginia protective orders can be issued between family or household members under Virginia Code Section 16.1-253.1 or if the parties do not meet the definition of family or household member, under Virginia Code Section 19.2-152.9.  Family or household members is defined by the Virginia Code as, “the person’s spouse, the person’s former spouse, the person’s parents, stepparents, children, stepchildren brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, in-laws, individuals with a child in common and individuals that cohabitate within the previous 12 months.”

Under Virginia Code Section 16.1-253.1, a preliminary protective order in cases of family abuse may be granted in an ex parte proceeding.  Ex partemeans that only the petitioner goes before a judge seeking a protective order. The Court may grant the preliminary protective order upon an affidavit or sworn testimony by the Petitioner.  In order to grant the preliminary protective order, the court must find the following:  The Petitioner was the subject of an act involving violence, force, or threat that resulted in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.  The events alleged by the Petitioner under Virginia Code Section 16.1-253.1 must have taken place within a, “reasonable period of time.”

When granting a preliminary protective order, the Court may impose the following conditions: prohibit acts of family abuse, prohibit contact between family members, grant possession of residence to petitioner, grant possession of vehicles, grant possession of companion animals as defined and prohibit either party from cutting off utilities to homes.

Within 15 days of the issuance of a preliminary protective order, the court under Virginia Code Section 16.1-279.1 must hold a full hearing on the matter.  This means that the Respondent has the ability to hear the evidence against them, confront their accuser, cross-examine the accuser and put on any evidence they wish for the court to hear.  At the conclusion of the full hearing, if the court finds that by a preponderance of the evidence that the Petitioner has proven they are the victim of family abuse, a final protective order, for up to two years may be issued against the Respondent.  At the conclusion of a full hearing for a protective order in the Juvenile and Domestic Relations District Court, either party may appeal the outcome to the Circuit Court within 10 days of the ruling.

Individuals that do not meet the definition of family or household members may seek a protective order under Virginia Code Section 19.2-152.9, in the General District Court if they have been subjected to violence, force or threat.

Yes, Section 20-107.3(G)(2) authorizes the Circuit Court in a Virginia divorce to “order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy except to the extent permitted by Section 20-107.1:1.”

This includes the Survivor Benefit Plan, commonly referred to as SBP, which is available to spouse and former spouses of military service members.

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